Sentencing Contempt of Court: “Is it too late to say I’m Sorry?”

In the recent case of Bruno Arboit v Koo Siu Ying HCMP [2016] HKEC 556, two defendants who failed to comply with Court orders, specifically the disclosure of documents required by the liquidator, were found guilty of contempt of Court. In this Law Alert, we summarise the factors taken into account by the Court when sentencing for contempt.

Law

The Court of First Instance (“CFI“) acknowledged that, as a starting point, contempt of civil Court orders is a serious matter and a prime consideration for the Court in sentencing for contempt is to “signal the importance of demonstrating to litigants that the orders of these Courts are to be obeyed“.

The sentence may range from a fine to a term of imprisonment (which has no statutory limit, unlike in the UK). When considering sentencing options, the Court will look at the circumstances of each case and has “an absolute discretion to suspend a term of imprisonment for such period or on such terms as the court deems fit“.

Relevant factors (which are not exhaustive) for consideration include:-
(a) aggravating factors;
(b) mitigating factors;
(c) acts to ‘purge’ (remedy) the contempt;
(d) the nature of the order and breach in question, and the extent of the breach;
(e) whether the contempt was contumacious or unintentional, the contemnor’s reasons, motives and state of mind;
(f) whether the claimant has been prejudiced by virtue of the contempt and whether the prejudice is capable of remedy;
(g) whether the contemnor appreciates the seriousness of the deliberate breach; and
(h) whether the contemnor has cooperated.

Decision

In this case, despite the defendants’ “contumacious and intentional” “wholesale failure” to produce all books, correspondence and documents in their custody or power relating to the business and affairs of the company concerned, the CFI found that the actual impact of the breaches on the liquidator was not substantial. Moreover, the defendants had apologized unreservedly to the Court, and the CFI was satisfied that there had been genuine efforts to “purge the contempt at an exceptional speed“.

Ultimately, the CFI summarized that “there is no point in sending two truly remorseful persons to prison” and fined each defendant HK$200,000.

Comment

In line with the spirit of the applicable legislation, imprisonment is regarded as a sanction of last resort when sentencing for contempt of Court in Hong Kong.

Notably, the CFI emphasized that, in the context of civil contempt, it would not place much weight on the fact of a contemnor being a first offender, as “the public must not be misled to believe that every person has one chance of disobeying a court’s order“.

Nonetheless, seeing as sentencing options remain at the absolute discretion of the Court, parties to Court actions must not abuse the Court process by turning a blind eye to mandatory Court orders. They will do so at their peril!